Charitable gifts in wills: should solicitors be 'making the ask'?
There are many reasons why private client solicitors should not be afraid of asking clients whether they would like to leave a legacy in their wills, says Gary Rycroft
Remember a Charity is a coalition of 200 or so charities who want more people to make charitable gifts in wills. One of their calls to action is for solicitors (and other will writers – yes, they do also dabble with the Dark Side of the unregulated sector) to ‘make the ask’.
In research carried out for The Cabinet Office Behavioural Insights Team in 2013, it was found that clients who discussed their proposed will with a solicitor or will writer who ‘made the ask’ were more likely to leave a charitable gift. This is often referred to as ‘nudge theory’, namely making a prompt as a positive reinforcement or indirect suggestion in order to in uence behaviour.
It was also found that the type of language employed can be important. The prosaic “Do you want to make a charitable legacy in your will” was found to be not as well received as “Are there any charities or organisations you support now or who mean something special to you, that you would like to receive a gift on your death”. I suppose it’s all about making a personal connection with the client, which as private client solicitors we should – in my view – embrace.
Charitable legacies are clearly good for charities – and they should be good for solici- tors too in that we want more people to make more wills. For solicitors, one of the selling points to clients about why it is a good idea to make a will is that it is a vehicle for them to exercise choice and control over the destina- tion of their estate on death. So, the nudge that on death you can leave a gift to your favoured charity or charities should mean that Remember a Charity and solicitors are bosom pals.
However, rather than the logical outcome of the Remember a Charity campaign being solicitors acting as key partners in the crusade to make more wills, the reality is often a tension in what otherwise should be the love match between the charity and legal sectors.
I think there are two reasons for this tension. We can call them the ‘high road’ and the ‘low road’ arguments.
The ‘high road’ argument is an assertion by some solicitors that as impartial professionals we should not in any way influence our clients. Flowing from that is a stance that even to mention charitable gifts as an option is tantamount to a breach of that duty.
The ‘low road’ argument is informed by the experience of solicitors when there is a charitable gift in a will and they feel that dealing with the charity or legacy officer concerned has been a challenge.
I do not agree with either of these standpoints.
Firstly, with regard to the high road, I believe passionately that in fact private client solicitors should not just be scribes to write up the stated wishes of a client. After all any old software package could do that. Rather, we should be problem solvers and trusted advisors. Of course, we should be impartial and not seek to influence client decisions. But we should point out issues such the possibility of leaving a charitable gift and indeed the tax advantages that may bring in some circumstances. By making suggestions to clients, we add value to the legal process or transaction we have been asked to deal with. A profes- sional should be able to tread the path of keeping advice on the right side of undue in uence. Signposting and awareness raising should be what we do.
Secondly, to put it bluntly those on the low road need to get over themselves. If we are professionals, we should respect other professionals namely charity legacy officers, who are doing the job they are trained to do. Yes, we should say something if they are over zealous, but personally, I have almost always found legacy o cers to be polite and helpful. Suggestions made by them about how best to dispose of assets can sometimes be welcome and none of us should resist the scrutiny of a third party. We should also respect the legal duty a charity has towards both the donor of the gift and also beneficiaries of the charity concerned.
I agree that sometimes there are practical issues to navigate, such as where for instance a house in the estate is to be sold and consultation with all the bene ciaries concerned including all the charities may be time consuming. But there is always – to coin a legal maxim of great import – more than one way to skin a cat, and appointing a lead beneficiary to make such decisions is one way to tackle it.
There are also matters to be thought about and discussed with clients at the will drafting stage, which could mitigate issues arising between legacy officer and other beneficiaries and/or legacy officers and solicitors dealing with estate administration at a later stage. For instance, it may be appropriate for personal chattels to be left to individuals rather than a charity, or to a charity with a charity shop (i.e. a readymade means of disposal).
A real fear of many charities is that clients move away from leaving gifts of residue to charity and opt for specific pecuniary legacies. I can see why many solicitors would welcome this but it is a risk because of the law of unintended consequences with regard to the makeup and value of the estate at the time the will is made being significantly different by the time of death. As such it is something which should be discussed with clients, and instructions and conversations clearly recorded in attendance notes.
Lay executors who decide to deal with an estate administration where there is a charity involved could be said to be either brave or foolish. So in the #MeCan era of clients wanting to do probate for themselves, having a charity beneficiary should be seen as a way of persuading those otherwise wavering that instructing a solicitor who is regulated and insured to do estate administration is a sensible move for all concerned.
Charities are an essential part of the fabric of our society. They often plug a gap the public sector is unable to fill because of either lack of resource or imagination. For too long tensions between the charity and legal sectors have hindered what should be strong relationship, sometimes to the detriment of clients who have a genuine desire to help the organisations they may have supported during their lives and who have made a difference to them and their loved ones, or who they wish to be remembered for supporting on death. For this reason, I would welcome some firm guidance or other signal from the SRA and or The Law Society that to make the ask about charitable legacies is something we should not avoid, or indeed sit on the fence about, but rather should do with alacrity.
Gary Rycroft is a partner at Joseph A. Jones